Thursday, June 22, 2017
The Tenth Circuit ruled this week that the mother of a school child had standing to challenge under the Establishment Clause the school's fundraising and support for a religious mission trip, even though the child received just one e-mail and one flyer from school officials soliciting donations for the trip.
The ruling reversed a district court order dismissing the case on the ground that the child's exposure to unconstitutional activities at the school lacked "a degree of constancy or conspicuousness."
The case arose after public school officials sought donated or a school-sponsored, religious mission trip to Guatemala. Families enrolled in the district and the American Humanist Association filed suit, seeking nominal monetary damages and declaratory and injunctive relief. The district court dismissed all the claims, ruling that the plaintiffs failed to show sufficient harm and that they lacked standing as taxpayers. As to plaintiff Jane Zoe, the district court held that the harm--one e-mail soliciting donations and one flyer from school employees soliciting donations--wasn't pervasive enough to satisfy standing requirements.
The Tenth Circuit reversed as to Zoe. The court held that under well-settled Supreme Court and circuit precedent, any harm, even nominal harm, will do to establish standing, and that a plaintiff need not show any particular level of heightened pervasiveness or degree of harm.
But the court denied injunctive relief to Zoe, holding that "the record does not suggest that Zoe is likely to receive similar fundraising solicitations in the future." The court also held that the other individual plaintiffs lacked standing, because they couldn't show that they'd been exposed (like Zoe had).
The ruling sends the case back to the district court for consideration of the merits.
Monday, June 19, 2017
The Supreme Court ruled today that post-9/11 "of interest" detainees could not sue executive officials for damages for constitutional violations during their detention. Moreover, the ruling in Ziglar v. Abbasi all but wipes out future damages remedies against federal officials for constitutional violations, except in the very narrow circumstances of three cases where the Court has found such a remedy. (And those cases may be hanging on by just a string.)
The case arose when post-9/11 detainees at a federal detention facility sued then-AG John Ashcroft, then-FBI Director Robert Mueller, and then-INS Commissioner James Ziglar for abusive detention policies in violation of their Fourth- and Fifth-Amendment rights. The plaintiffs sought monetary damages under Bivens.
The Court today rejected those claims. In an opinion abounding with deference to Congress, Justice Kennedy, writing for himself and Chief Justice Roberts and Justices Thomas and Alito (Justices Sotomayor, Kagan, and Gorsuch were all recused), held that the case raised a new Bivens context and that special factors counseled against a Bivens remedy.
As to context, the Court set out this test:
If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk or disruptive intrusion by the Judiciary into the functioning of other branches; or the present of potential special factors that previous Bivens cases did not consider.
In other words, if a new case isn't nearly on all fours with one of the three cases where the Court has found a Bivens remedy--Bivens itself (a Fourth Amendment violation), Davis v. Passman (an assistant's Fifth Amendment Due Process claim against a Congressman for gender discrimination), and Carlson v. Green (a prisoner's estate's Eighth Amendment Cruel-and-Unusual claim)--there's a new context. And the Court said that this case presented a new context.
As to special factors, the Court said that the claims "call[ed] into question the formulation and implementation of a general policy," that the policy related to the government's response to the 9/11 attacks (a national security concern, traditionally an area for the executive), that Congress had not provided a damages remedy, and that other remedies (injunctive relief, a habeas claim) were available.
Between the Court's very narrow view of new circumstances and its very broad view of special factors counseling against a Bivens remedy, this case failed. And the ruling ensures that very few future Bivens cases will succeed.
On another issue, the Court remanded a related claim against the prison warden, instructing the lower court to conduct a special-factors analysis. Finally, the Court rejected the plaintiffs' civil-rights conspiracy claim, holding that the defendants enjoyed qualified immunity, because the question whether officials all within the executive branch could constitute a conspiracy "is sufficiently open so that the officials in this suit could not be certain that [conspiracy] was applicable to their discussions and actions."
Justice Breyer dissented, joined by Justice Ginsburg.
Wednesday, June 14, 2017
The Third Circuit last week dismissed a case challenging an elected candidate's qualifications for the Virgin Islands legislature. The ruling means that the elected candidate will not be seated.
The case arose when Kevin Rodriguez was elected to serve in the Virgin Islands Legislature. After the election, but before the swearing-in, a rival candidate, Janelle Sarauw, challenged Rodriguez's qualifications to serve, based on Rodriguez's prior representation in a bankruptcy case that he lived in Tennessee. (The VI Revised Organic Act requires that a person serving in the VI legislature reside in the VI for at least three years preceding the date of his or her election.) Sarauw sued in the VI courts and sought an injunction compelling the Board of Elections to de-certify Rodriguez as a qualified candidate, thus preventing him from taking a seat in the 32nd Legislature. (The Board, an independently elected body outside the legislature and judiciary, has authority under the ROA to determine qualifications of candidates before swearing in.)
While that case was moving up and down the VI courts, the 32nd Legislature was sworn in (without Rodriguez, because the courts were still working out how to deal with his qualification). Rodriguez then removed the case to federal court (remember, this is all federal law, including the ROA, because of the VI's status in relation to the US), asking for an injunction directing the 32nd Legislature to seat him.
The Third Circuit tossed the case. The court ruled that the courts lacked authority to rule a candidate qualified after the swearing in, because the ROA says that the legislature shall have the sole power to determine the qualifications of its members. In other words, the issue was textually committed to a coordinate branch of government--a political question. (The court ruled that the ROA contains separation-of-powers principles, which form the basis of the political question doctrine.) The court noted that separation-of-powers and the ROA would not prohibit the courts from ruling on a candidate's qualifications before swearing in, when the Board has authority to make such a determination, because the separation of powers don't apply to the Board, "a popularly elected and independent entity" that's not a part of the legislative or judicial branches. But Rodriguez only removed his case after the swearing-in, so his case was always a political question.
The court also ruled that the portion of the case brought by Sarauw, the "removed case," was moot, because the legislature had already been sworn in.
Along the way, the governor ordered a special election, and Sarauw won.
Monday, June 5, 2017
The Supreme Court ruled today that intervenors as of right under Rule 24(a)(2) have to meet Article III standing requirements if they wish to pursue relief not requested by a plaintiff.
But the Court didn't say whether the intervenor in the case sought relief different from the plaintiff. Instead, the Court remanded for further consideration on that point.
The case involved Steven Sherman's regulatory takings lawsuit against the town of Chester, New York, for holding up his housing subdivision project, MareBrook. A real estate development corporation, Laroe Estates, Inc., paid Sherman more than $2.5 million for a portion of the property, but agreed to transfer a certain number of lots back to Sherman when the town approved the development. Under the agreement, Laroe also had authority to settle a debt that Sherman owed a bank and to terminate the agreement with Sherman if the settlement failed. It did fail, and the bank took over the property, but Laroe didn't terminate its agreement with Sherman.
Laroe moved to intervene as of right pursuant to Rule 24(a)(2).
The Court ruled that Laroe had to satisfy Article III standing, if it sought relief different than the relief that Sherman sought. (The parties (and the United States as amicus) all agreed on this.) But the Court said that the record was ambiguous as to the relief that Laroe actually sought. So it remanded the case for further proceedings.
If the lower courts determine that Laroe seeks relief that's different than the relief that Sherman seeks--including the same relief, but in its own (not Sherman's) name--Laroe will have to demonstrate its own Article III standing.
Wednesday, May 24, 2017
The Fourth Circuit ruled yesterday that a case challenging the NSA's upstream surveillance program can move forward. The ruling reverses a district court ruling that dismissed the case for lack of standing, citing Clapper v. Amnesty International. The Fourth Circuit distinguished Clapper, however, and let the case move forward.
In short, the two key differences in Clapper: Wikimedia has more communications with a larger, more comprehensive reach than the plaintiffs in Clapper; and the plaintiffs here learned (and pleaded) more about the nature of the program.
In so ruling, the court followed the Third Circuit's approach in a similar case last year, Schuchardt v. President of the United States.
The case involved two challenges to the upstream surveillance program under Section 702 of the FISA Amendments Act of 2008. (This program authorizes the government, subject to certain controls, to collect and search electronic communications between an overseas target and a person in the US.) In the first challenge, the "Wikimedia challenge," Wikimedia argued that given its size and amount of international communications, and given the nature of the upstream surveillance program, the NSA necessarily collected at least some of its Internet communications. In the second challenge, the "dragnet challenge," plaintiffs argued that the nature of the NSA program alone likely meant that the NSA in fact collects all Internet communications. (The plaintiffs in this case had more information about the nature of the program than the plaintiffs in the earlier Clapper case, so could plead a stronger argument.)
The court ruled that "Wikimedia has plausibly alleged that its communications travel all the roads that a communication can take, and that the NSA seizes all of the communications along at least one of those roads." Moreover, "because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment." As to Clapper: "Unlike in Clapper, where the plaintiffs based their theories of standing on prospective or threatened injury and actions taken in response thereto, Wikimedia pleaded an actual and ongoing injury [actual, not speculative, collection of at least some of Wikimedia's communications], which renders Clapper's certainly-impending analysis inapposite here.
But at the same time, the court ruled that the plaintiffs lacked standing to assert the dragnet challenge. In short, the court said that the plaintiffs could not "plausibly establish that the NSA is intercepting 'substantially all' text-based communications entering and leaving the United States." (In contrast, Wikimedia only had to show that the NSA is conducting upstream surveillance on a single backbone link on the Internet connections to the United States, which it did.)
Judge Davis concurred with the result as to the Wikimedia challenge, but dissented as to the dragnet challenge: "However, because I would find that the non-Wikimedia Plaintiffs also have standing, I respectfully dissent in part."
Wednesday, May 3, 2017
The Sixth Circuit ruled yesterday that a damages claim against Rowan County Clerk Kim Davis for denying a marriage license to a same-sex couple can move forward. The ruling reverses a lower court ruling that dismissed the case as moot and sends the case back for further proceedings.
This was one of three cases challenging Davis's refusal to issue marriage licenses to same-sex couples in the wake of Obergefell. The other two sought declaratory and injunctive relief; this one sought monetary damages.
After Kentucky passed a law that permitted county clerks to issue licenses without their names--an accommodation to Davis's religious objection--same-sex couples, including the plaintiffs here, received their marriage licenses. Courts then dismissed the two cases seeking declaratory and injunctive relief as moot (because the plaintiffs received their licenses), and the lower court dismissed this case as moot, too.
The Sixth Circuit reversed. The court held that the plaintiffs' claim for monetary damages continued to be a live dispute, despite Kentucky's accommodation law, because it sought relief for past harms to the plaintiffs that weren't remedied by their eventual receipt of a license. The court noted that a claim for monetary damages for past harms can live on, even if other portions of a suit for declaratory and injunctive relief (or other, related suits for those forms of relief) become moot.
Judge Siler concurred, but added that Davis might argue on remand that she was protected by the Kentucky Religious Freedom Restoration Act. In particular, Judge Siler argued that the district court "should have the first opportunity upon remand to decide whether that or any other provision of the law would protect Davis as a qualified-immunity or absolute-immunity defense under the circumstances."
Wednesday, April 19, 2017
The Center for Responsibility and Ethics in Washington sought to tighten standing by adding plaintiffs to its complaint against President Trump for violations of the Emoluments Clause. We previously posted on the case here.
CREW's standing to sue was sure to be an early issue, even a roadblock, in the case. So the organization added plaintiffs ROC United, a nonprofit corporation with restaurant members and a restaurant owner in its own right, and an individual who books events for Washington hotels. Both new plaintiffs argue that President Trump, by doing and gaining business at his own hotels and restaurants in violation of the Emoluments Clause, is harming their bottom line by taking away business.
The move is designed the tighten standing. In order to sue in federal court, a plaintiff has to show that they suffered an actual or imminent concrete and particularized injury, that the defendant's alleged actions caused the injury, and that their requested relief would redress their injury. The amended complaint almost surely satisfies these requirements, but we're still likely to see a motion to dismiss for lack of standing.
Thursday, March 23, 2017
The Fifth Circuit ruled this week that a medical air-evacuation company has standing and that it sufficiently alleged that state defendants had "some connection" to the enforcement of state law against it to allow the company's preemption suit, including a request for injunctive relief, to move forward. The ruling remands the case to the district court for proceedings on the merits.
The case involves Texas's workers'-compensation scheme, which caps reimbursement to Air Evac's medi-vac air ambulances from an insurance company. Under the Texas Workers' Compensation Act, the Texas Workers' Compensation Commission sets reimbursements rates for insurers to pay health-care providers directly. The Act also prohibits health-care providers from billing a patient for any amount in excess of the set rate. The upshot is that "the initial bill goes to the insurer rather than the patient," at a set rate, here 125% of the Medicare rate for the same service.
Air Evac, along with other, similar health-care providers, challenged the rate through the state administrative-dispute system, arguing that it was preempted by the federal Airline Deregulation Act. They lost, and the lead plaintiff, PHI, appealed.
While the appeal was pending, Air Evac filed this case in federal court, seeking a declaration that the ADA preempted the TWCA and an injunction against TWCA enforcement (under Ex Parte Young). But the district court dismissed the case for lack of subject-matter jurisdiction, because the state defendants weren't charged with enforcing the maximum-reimbursement scheme against Air Evac (because the rate "constraints the amount insurers can pay, rather than the amount air-ambulance companies can charge"), and because Air Evac "failed to show an enforcement proceeding concerning the balance-billing prohibition is imminent, threatened, or even intended."
The Fifth Circuit reversed. The court ruled that Air Evac had standing, because the maximum rate actually constrained the amount that Air Evac could receive, even though it operated directly on the third-party insurer (and not Air Evac). The court held that there was federal question jurisdiction, because Air Evac pleaded that the federal ADA preempted the TWCA. And the court ruled that the state defendants had "some connection" to enforcement of the maximum rate against Air Evac, again because the maximum rate actually constrained Air Evac's reimbursement, even if it operated on the insurer. The court declined to abstain while PHI's state appeal was pending, because the parties and claims were different.
The ruling sends the case back to the district court for proceedings on the merits, the preemption claim.
Thursday, March 9, 2017
The Ninth Circuit ruled that the California Desert Water Agency lacks standing to challenge a new Bureau of Indian Affairs regulation concerning taxes on leases on Native American lands to third parties. The ruling ends DWA's challenge, although DWA could resurrect it, if BIA later halts DWA taxes under the reg.
The case centers around a BIA reg on state and local government taxation of leases by non-Native Americans on Native American lands. The relevant subsection says that "[s]ubject only to applicable Federal law, the leasehold or possessory interest is not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Leasehold or possessory interests may be subject to taxation by the Indian tribe with jurisdiction."
The DWA, which assess taxes on these leases, sued under the APA. But the Ninth Circuit ruled that it lacked standing.
The court said that the regulatory language "[s]ubject only to applicable Federal law," incorporated existing case law, in particular, White Mountain Apache Tribe v. Bracker (1980), which held that courts must apply a fact-specific balancing test in order to determine whether federal law preempts any particular state effort to regulate non-Native American conduct on tribal lands. In other words, the reg, as understood incorporating the Bracker test, couldn't preempt and halt DWA taxation until a court, applying the Bracker test, said so. The reg by its own force doesn't preempt. And with no preemption of DWA taxation, DWA doesn't have a harm, and without a harm DWA lacks standing. (Indeed, after BIA issued the reg, DWA continued to collect taxes on these leases, with no direct threat of enforcement by the BIA.)
The court went on to reject DWA's argument that notwithstanding Bracker incorporation, it still suffered a harm, because the reg would encourage leaseholders not to pay their taxes. The court applied Linda R.S. v. Richard D. and Simon v. Eastern Ky. Welfare Rights Org. in support of its conclusion that "a plaintiff in DWA's position lacks standing if, notwithstanding the relief sought, the third parties would retain discretion to continue their harmful behavior or, alternatively, if it is too speculative to conclude that they would modify their behavior in the way the plaintiff desires."
Tuesday, February 21, 2017
The Supreme Court heard oral arguments today in Hernandez v. Mesa, the case testing whether the family of a Mexican youth can sue a border patrol agent for Fourth and Fifth Amendment violations for shooting and killing the youth while the agent was on the U.S. side of the border, but the youth was in the concrete border culvert, 60 feet into Mexico.
The parties briefed three issues--whether a formalist or functionalist approach governs the Fourth Amendment's application outside the U.S., whether the officer enjoyed qualified immunity for the Fifth Amendment violation, and whether Bivens provided a remedy--but only two were really on display today: the extraterritorial application of the Fourth Amendment, and Bivens. And if the arguments are any prediction, it looks like a closely divided Court could rule for the agent. But the case could also be a good candidate for re-argument, when a ninth Justice joins the Court.
The plaintiffs' biggest problem was defining a workable test for the application of the Fourth Amendment. The formalist approach has the benefit of providing a bright-line for the application of the Fourth Amendment--the actual border. But the functional approach (or something like it) is more flexible in a situation like this, where the difference in a remedy could (absurdly, to some) be measured in the 60-foot distance between Hernandez and the U.S. border when he was shot.
Trying to walk a line between a rigid-border approach and a functional approach without any clear and determinate limits, the plaintiffs argued for a test that would apply the Fourth Amendment only in the culvert area straddling the border--an area that includes both U.S. and Mexican territory, but just barely. They justified this case-specific approach on the number of cross-border shootings that occurred of late: a particular problem demands a particular solution.
Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed on board with this approach; Chief Justice Roberts and Justice Alito did not. If the Court splits 4-4 on the issue (as seems likely), the lower court ruling simply stays in place. That ruling said that neither the Fourth nor Fifth Amendment applied, and that Hernandez therefore had no federal constitutional remedy.
But whatever the Court says about the "extraterritorial" application of the Fourth Amendment, there's another issue--a threshold one: Bivens. Here, the Justices seemed to divide along conventional political lines. Justice Kennedy well outlined the conservatives' case when he asked the plaintiffs this:
Since 1988, this Court has not recognized a single Bivens action. We look for special considerations. You've indicated that there's a problem all along the border. Why doesn't that counsel us that this is one of the most sensitive areas of foreign affairs where the political branches should discuss with Mexico what the solution ought to be? It seems to me that this is an extraordinary case for us to say there's a Bivens action in light of what we've done since 1988 where we haven't created a single one.
The four conventional progressives pushed back, equally hard.
If the Court divides 4-4 on Bivens, as seems likely, it might not matter to the outcome, because a 4-4 split on extraterritoriality would hand the win to Mesa, the border agent. But a 4-4 split on Bivens would leave open a substantial question that the Court itself directed the parties to answer: does Bivens provide a remedy here? Because there's no lower-court ruling on Bivens (the en banc Fifth Circuit did not address the issue, and only reinstated the non-Bivens portions of the panel ruling), a 4-4 split would not even leave in a place a lower court ruling. Given that the Court itself added this question--suggesting that it would like an answer--a 4-4 split may mean that the Court holds this case over for re-argument with a ninth Justice.
Thursday, January 19, 2017
An unusually short-stafffed Supreme Court heard oral arguments yesterday in Ziglar v. Abbasi, the case testing whether detainees in the early post-9/11 round-ups could sue government officials for damages for constitutional violations based on their harsh conditions of confinement. (Our preview is here.)
The Court leaned toward the government.
The deck was already stacked against the detainees, what with Justices Sotomayor and Kagan both recused. This left a six-member Court, with just two (Justices Ginsburg and Breyer) more likely to favor the detainees. But even if Justices Ginsburg and Breyer would rule for the detainees, they'd need a third vote to tie and affirm the Second Circuit's ruling, or a fourth to outright win. It didn't look like that will happen.
The deck was stacked for another reason: defendants challenged the Second Circuit's ruling on three independent grounds--failure to meet the pleading standards in Iqbal, lack of a Bivens remedy, and qualified immunity. A ruling for the officials on any one of these grounds would result in a loss for the plaintiffs. And based on the arguments, it seems likely that the Court could rule on different grounds for the different classes of defendants.
Much of the arguments focused on Bivens, and whether the plaintiffs' claim raised a "new context" for Bivens. Chief Justice Roberts and Justice Kennedy--the two perhaps next most likely to rule for the plaintiffs, after Justices Ginsburg and Breyer--both said yes, based on the national security and immigration context of the case. (The plaintiffs have always maintained that the context is the condition in ordinary prison detention (and therefore a familiar Bivens context), not national security and immigration, because that's what they complained about. But Chief Justice Roberts and Justice Kennedy didn't buy it.) If so, the Court will likely rule that Bivens doesn't extend to this case, and toss the plaintiffs' claims.
Pleading standards and qualified immunity got somewhat less attention, but could also defeat the plaintiffs' claims. As to pleading standards, the government argued that this case is simply a re-do of Iqbal itself, with the same pleading deficiencies. As to qualified immunity, the government argued that high-level DOJ officials couldn't be held liable for establishing policies, while the prison officials argued that they couldn't be held liable simply for implementing policies. If so, qualified immunity puts the plaintiffs between a rock and a hard place, getting relief neither against high level DOJ officials nor lower-level prison officials.
At the same time, the Court (particularly Justice Kennedy) seemed concerned that the plaintiffs would have some remedy, even if not a Bivens remedy. Habeas, the Administrative Procedures Act, injunctive relief, civil rights conspiracy (42 U.S.C. 1985), and the Federal Tort Claims Act were all floated at one time or another as potential remedies, but each has its limits or outright problems. Between some or all of these, though, there's probably enough of a non-Bivens remedy to satisfy Justice Kennedy and even Chief Justice Roberts, if, indeed, that's a concern that might sway them.
Tuesday, January 17, 2017
The Supreme Court will hear oral arguments tomorrow in Ziglar v. Abbasi, the case testing whether post-9/11 detainees can sue federal officials for constitutional violations. In particular, the case asks (1) whether the plaintiffs have a Bivens claim, (2) whether the federal defendants enjoy qualified immunity, and (3) whether the plaintiffs sufficiently pleaded their case for direct liability.
Here's my preview, reprinted with permission from the ABA Preview of United States Supreme Court Cases:
Soon after the 9/11 attacks, the FBI and other agencies in the Department of Justice initiated an investigation aimed at identifying the 9/11 perpetrators and preventing another attack. The investigative unit, PENTTBOM, the Pentagon/Twin Towers Bombing investigation, was initially run out of the FBI’s field offices, but moved to the FBI’s Strategic Information and Operations Center, or SIOC, at FBI Headquarters in Washington, D.C. FBI Director Robert Mueller personally directed PENTTBOM from the SIOC and remained in daily contact with FBI field offices.
As part of DOJ’s response to the attacks, officials, including Attorney General John Ashcroft and Mueller, developed policies on the arrest and detention of alien suspects based on tips that the FBI received from the public. As part of the policies, according to the plaintiffs’ complaint, “any Muslim or Arab man encountered during the investigation of a tip received in the 9/11 terrorism investigation . . . and discovered to be a non-citizen who had violated the terms of his visa, was arrested.” Ashcroft also created the “hold-until-cleared” policy, which required that individuals arrested in the investigation would not be released from custody until FBI Headquarters affirmatively cleared them of ties to terrorism.
In order to coordinate efforts among the various agencies within DOJ that had an interest in, or responsibility for, detainees, the Deputy Attorney General’s Office (DAG) established the SIOC Working Group. The Group included representatives from the FBI, the INS, and the DAG. The group met at least once a day in the months following the 9/11 attacks. Its responsibilities included “coordinat[ing] information and evidence sharing among the FBI, INS, and U.S. Attorneys’ offices” and “ensur[ing] that aliens detained as part of the PENTTBOM investigation would not be released until they were cleared by the FBI of involvement with the September 11 attacks or terrorism in general.”
The FBI dedicated more than 4,000 special agents and 3,000 support personnel to the investigation and the effort to prevent additional attacks. It received about 96,000 tips in the week after the 9/11 attacks alone. (Many of these, including the tips on some of the plaintiffs in this case, were astonishingly weak or unreliable or had nothing to do with terrorism.)
The INS maintained a national list of aliens in which the FBI had “an interest.” Separately, the New York FBI created its own list of individuals that were “of interest” or “special interest.” (The New York effort differed from similar efforts in the rest of the country at least in part because of the New York FBI’s and U.S. Attorney’s Office’s long tradition of independence from their headquarters in Washington, D.C. For at least some number of individuals on the New York list, arresting officers failed to conduct the same vetting that detainees on the INS list received.) FBI Headquarters learned of the New York list in October 2001, and officials eventually merged the two lists. Ultimately, 762 detainees, including the plaintiffs, were placed on the INS Custody List and were subject to the hold-until-cleared policy. (491 of these detainees were arrested in New York, but it is not clear how many of those were arrested as a result of the efforts of the New York FBI.)
(For more on the identification, arrest, detention, and treatment of individuals in the post-9/11 investigation, see the DOJ’s Office of Inspector General Report, A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (April 2003), available at https://oig.justice.gov/special/0306/full.pdf.)
The plaintiffs were held at the Metropolitan Detention Center (MDC) in Brooklyn, New York. Under the MDC confinement policy, created by MDC officials in consultation with the FBI, these plaintiffs were placed in the MDC’s Administrative Maximum Special Housing Unit (ADMAX SHU), a particularly restrictive unit within the Center. Conditions in the ADMAX SHU were severe. For example, detainees, including the plaintiffs, were placed in small cells for over 23 hours a day, they were strip-searched whenever they were removed from or returned to their cells, they received “meager and barely edible” food, they were denied sleep, and they were denied basic hygiene items, among other problems. MDC staff also physically and verbally abused the plaintiffs. (The conditions are described in greater detail in the lower court opinion and in the plaintiffs’ briefs. For yet more on the conditions at the MDC, see the DOJ’s Office of Inspector General Report, Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York (Dec. 2003), available at http://www.justice.gov/oig/special/0312/final.pdf. ) The plaintiffs were held from three to eight months.
The plaintiffs filed a putative class-action lawsuit against Ashcroft, Mueller, former Commissioner of the INS James Ziglar, former MDC Warden Dennis Hasty, former MDC Warden Michael Zenk, and former MDC Associate Warden James Sherman, alleging that they discriminated against them and mistreated them in violation of the Constitution. They also alleged a conspiracy to violate their civil rights. (There are eight plaintiffs now in the case. It has not been certified as a class action.) The district court dismissed all the claims against the DOJ defendants and some (but not all) of the claims against the MDC defendants. The United States Court of Appeals for the Second Circuit reversed in part and ruled that many of the claims against all of the defendants could move forward. This appeal followed. (The defendants appealed in three separate petitions, but the Court consolidated them into a single appeal. Ashcroft and Mueller are represented by the Solicitor General; Ziglar is represented by private counsel; Hasty and Sherman are represented by different private counsel.)
The case involves three discrete issues. Let’s take them one at a time. (The various defendants make largely the same arguments on each point below. But where they make different arguments, this summary distinguishes between the arguments of the FBI defendants and those of the MDC defendants.)
Can the plaintiffs bring a federal civil rights action?
Civil rights in the U.S. Constitution are not self-executing. This means that Congress has to enact legislation in order for individuals to enforce them in the courts. Congress has not enacted such legislation for civil rights claims against federal officials. But the Supreme Court has recognized an implied right of action against federal officials in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. 403 U.S. 388 (1971).
Bivens is a quite limited remedy, however. The Court has recognized Bivens actions only in certain contexts (including, as relevant here, a case where a prisoner challenges the conditions of his or her confinement). And the Court will not extend a Bivens claim to new contexts when “special factors counsel hesitation,” that is, when circumstances suggest that Congress, and not the courts, should decide whether an action is appropriate.
The defendants argue that the plaintiffs’ case presents a new context, and that special factors counsel against a Bivens remedy. The defendants say that the context here is the executive branch’s response to an “unprecedented terrorist attack and the detention of foreign nationals illegally in the United States.” They claim that the plaintiffs seek to challenge high-level policy decisions on national security and immigration—new contexts for Bivens. Moreover, they claim that the case implicates the correctness of FBI terrorist designations and federal law enforcement lines of authority and chains of command, in addition to the DOJ’s response to a national-security threat and its implementation of the nation’s immigration laws. They contend that these are all special factors that counsel against extending a Bivens remedy to this new context.
The plaintiffs counter that their case falls squarely within a recognized Bivens context, prisoner challenges to conditions of confinement. But even if their case presents a new context, the plaintiffs argue that a Bivens remedy is appropriate. They say that their claims have nothing to do with national security or immigration enforcement (some of the special factors that the defendants raise that, they say, counsel against a Bivens remedy), and that the interests in deterring federal officials from violating constitutional rights and compensating victims cut in favor of a Bivens remedy. The plaintiffs assert that these points are especially true against the MDC defendants (even if not against the DOJ defendants), because the MDC officials were directly responsible for their conditions of confinement.
The doctrine of qualified immunity protects government officials from civil liability for alleged constitutional harms, so long as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” In determining whether a right is “clearly established,” the Court looks to “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194 (2001). The inquiry necessarily looks to Supreme Court rulings on the right in question at the time of the officer’s actions.
The defendants argue that they are entitled to qualified immunity, given the special situation in which they operated. The FBI defendants claim that the plaintiffs did not have a “clearly established right to be immediately released from restrictive confinement” when the federal officials learned that “in some instances, arresting officers had failed to conduct the same initial vetting that other September 11 detainees received.” They contend that applying the hold-until-cleared policy was not clearly “so arbitrary as to constitute an impermissibly punitive or impermissibly discriminatory act.” The MDC defendants assert that they were simply implementing FBI and BOP policies in holding the plaintiffs, and that no clearly established law required them to “impos[e] less restrictive conditions [of confinement] based on their own subjective assessment of the [plaintiffs’] terrorism connections.” They claim that the strip-searches did not violate clearly established Fourth Amendment law, because they were reasonably related to prison security.
The plaintiffs argue that the defendants are not entitled to qualified immunity. As to the FBI defendants, the plaintiffs claim that at the time of their arrests and detentions, precedent clearly established that officials could not detain individuals arbitrarily and without a purpose reasonably related to a legitimate government interest. They also say that precedent clearly established that officials could not single out individuals for arrest and detention based on race, religion, or ethnicity. As to the MDC defendants, the plaintiffs contend that placing individuals in restrictive detention without individualized justification violates Bureau of Prisons policy and clearly established law at the time of the detention.
While this case was moving through the lower courts, the Supreme Court clarified and heightened the pleading standard that a plaintiff must satisfy in a civil rights case. In particular, the Court ruled that a complaint must “state a claim to relief that is plausible on its face.” This means “more than a sheer possibility that a defendant has acted unlawfully,” or that the alleged facts are “merely consistent with a defendant’s liability.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). Moreover, a plaintiff’s Bivens claim cannot move forward based on supervisory (or vicarious) liability; instead, a plaintiff must plead that a defendant is directly liability for the unconstitutional conduct.
The defendants argue that the plaintiffs have failed to meet the Iqbal standards. The DOJ defendants point to Iqbal itself and contend that the Court in that case refused to credit similar assertions against the hold-until-cleared policy. They also say that the plaintiffs failed to plead that the DOJ defendants’ decision to merge the New York list and the INS list was based on discrimination, instead of a valid concern that “the FBI could unwittingly permit a dangerous individual to leave the United States.” The MDC defendants claim that they were simply implementing FBI and BOP policies, not acting to discriminate or treat detainees arbitrarily. They also say that they were not personally responsible for certain abuses within the MDC (like strip-searching), because they did not create or approve or even know about those abuses.
The plaintiffs counter that they have met the Iqbal standards against all the defendants. As to the DOJ defendants, the plaintiffs contend that their complaint included sufficiently detailed factual allegations that the DOJ defendants established policies to target Muslim men of Arab and South Asian descent and to hold such men in isolation and to treat them harshly. As to the MDC defendants, they assert that their complaint plausibly claimed that the MDC defendants were deliberately indifferent, and even willfully blind, to the abuse against them. They also say that the MDC defendants failed to correct the abuse when they learned of it.
This is an incredibly important case that tests the boundaries of civil rights claims against individual federal officials for designing and implementing policies on the identification, arrest, detention, and treatment of individuals in the investigations into the 9/11 attacks. In other words, it tests when and how federal officials might be personally liable for civil damages arising out of these hotly disputed events and extremely challenging times for both law enforcement and targeted Muslims and Arabs alike.
But it’s important to remember that this case only touches on threshold defenses, and not on the underlying merits. The Court won’t examine whether the defendants actually violated the plaintiffs’ rights, except to the extent necessary to determine whether the claims arise in new context, whether the defendants are entitled to qualified immunity, and whether the plaintiffs sufficiently pleaded their case. (Moreover, the Court will almost surely say nothing about the merits of the underlying policies in investigating or preventing terrorist attacks.)
At the same time, however, these threshold defenses are very important. They operate as gate-keepers to the courts for any plaintiffs who seek to bring civil rights claims against federal officials. As such, they largely control whether a plaintiff has a remedy in the federal courts for a federal violation of civil rights. (And for many federal-civil-rights plaintiffs, the federal courts provide their only remedy.) How the Court rules on these defenses will determine whether plaintiffs have access to a federal judicial remedy in this case, and beyond.
When the Roberts Court has ruled on issues like those in this case, it has fairly consistently restricted access to the courts (and not expanded it). But this case involves three different threshold issues with two (or more) sets of differently situated defendants, so it gives the Court a unique opportunity to more carefully explore the particular metes and bounds of these doctrines.
The Court will be particularly short-staffed in this case. That’s because Justices Sotomayor and Kagan are recused. If the Court divides along conventional ideological lines, three justices (Chief Justice Roberts and Justices Thomas and Alito) will likely rule in favor of the defendants, and two (Justices Ginsburg and Breyer) will likely rule in favor of the plaintiffs. Justice Kennedy could join the conservatives to hand the defendants a win, or he could join the progressives to create a tie. If so, the Second Circuit ruling will stand, although it will have no nationwide precedential value. Given the number of issues and differently situated defendants, however, it is also possible that the Court could issue a more nuanced ruling.
Thursday, January 12, 2017
The First Circuit ruled yesterday that plaintiffs lacked standing to challenge New Hampshire's abortion clinic buffer-zone law. The ruling ends the lawsuit and leaves the buffer-zone law in place, although it's not enforced (and that's why there's no standing).
The case arose from a pre-enforcement challenge to New Hampshire's law that permits (but does not require) a reproductive health care facility to establish a zone "up to 25 feet" onto public property adjacent to its facilities and to exclude members of the public from that zone through civil enforcement measures. Plaintiffs challenged the law soon after the Court handed down McCullen v. Coakley, striking Massachusetts's buffer zone.
But no New Hampshire clinic had established a buffer zone, and none was set to establish one. The plaintiffs therefore couldn't allege a harm, and the court kicked the case for lack of standing:
[T]he plaintiffs have not alleged that the Act has meaningfully altered their expressive activities, nor that it has objectively chilled their exercise of First Amendment rights. Because no facility in New Hampshire has yet demarcated a zone, and there is no present evidence that a zone will ever be demarcated, the plaintiffs' "alleged injury is . . . too speculative for Article III purposes." Clapper v. Amnesty Int'l.
The court also ruled that the case wasn't ripe.
Tuesday, December 27, 2016
The D.C. Circuit ruled today that a civil case involving the recovery of some unknown number of apparently not-yet-released Hillary Clinton e-mails is not moot. But the ruling carefully says nothing about the merits and other barriers to moving forward, so it's not yet clear that the ruling will result in any further investigation. It just means that the district court can move to the next steps.
The case arose when Judicial Watch sought a court order compelling Secretary of State Kerry to refer the effort to recover certain e-mails to the Attorney General. Judicial Watch relied on the Administrative Procedure Act and a portion of the Federal Records Act. That Act requires the relevant agency head (in mandatory, non-discretionary language), when he or she becomes aware of "any actual, impending, or threatened unlawful removal . . . or  destruction of [agency] records," to "notify the Archivist . . . and with the assistance of the Archivist [to] initiate action through the Attorney General."
The district court tossed the case on mootness grounds, ruling that Secretary Kerry and the Archivist had made a "sustained effort" to recover the e-mails, yielding "a very substantial harvest," even if they failed to refer the effort to the AG.
The D.C. Circuit reversed. The court ruled that there may still be some un-recovered e-mails out there that the Secretary's and Archivist's efforts haven't revealed--and that therefore require referral to the AG, under the Records Act. In particular, the court said that Clinton used yet different e-mail accounts (other than her private server account) during part of her tenure as Secretary, and that e-mails on these accounts haven't been recovered.
If appellants had only sought emails from the server account, a mootness argument based on the recovery of hte server might well succeed. But the server and the emails it housed do not tell the full story; Secretary Clinton used two nongovernmental email accounts during her tenure at the State Department. . . .
The complaints here sought to ensure recovery [of] all of the former Secretary's work emails, including [on these other accounts]. Because the complaints sought recovery of emails from all of the former Secretary's accounts, the FBI's recover of a server that hosted only one account does not moot the suits.
The ruling sends the case back to the district court. But that doesn't necessarily mean that the court will, or can, order Secretary Kerry to refer the matter to the AG, or that the AG must do anything. As the court wrote,
[W]e express no opinion on whether the Attorney General's action or inaction in response to a referral would be reviewable. Nor do we address possible constitutional defenses that the Secretary or Archivist might raise to the statutory command's constraint on their discretion; they have raised no such argument.
Wednesday, December 14, 2016
Three district courts ruled late last week and early this week that petitioners lacked standing (Article III or otherwise) to challenge President-Elect Trump's election, or to petition for a recount.
On Friday, the Michigan Supreme Court effectively halted the recount effort there. Two concurring justices explained that Jill Stein was not "aggrieved" under the recount statute and therefore couldn't petition for a recount--the same argument that Trump and the Michigan AG made earlier in the process. Then on Monday Judge Diamond (E.D. Pa.) ruled that Jill Stein lacked Article III standing to seek a recount through the federal courts. (Judge Diamond identified several other problems with Stein's complaint.)
On Friday, Judge Moss (D.D.C.) tossed a case by a pro se plaintiff challenging Trump's election, because "[a]n ordinary citizen's challenge to the eligibility of a presidential candidate falls squarely within this category of nonjusticiable 'generalized grievances.'"
Wednesday, November 30, 2016
Second Circuit Says Plaintiff Has Standing for Some, but Not All, Truth-In-Lending Procedural Violations
The Second Circuit ruled today that a class representative had standing to challenge a creditor's failure to disclose certain requirements under the Truth In Lending Act, but lacked standing to challenge other failures to disclose.
The ruling means that two of the plaintiff's claims are dismissed for lack of standing. The court dismissed the other two on the merits.
The court's ruling applies last Term's Spokeo v. Robins, dealing with a plaintiff's ability to challenge a defendant's failure to comply with "procedural" statutory requirements, absent a more traditional injury. The Court in Spokeo held that a plaintiff who seeks to challenge a defendant's failure to comply with a statute also has to allege and show a concrete injury in order to show Article III standing. (The statutory violation is called a "procedural violation," because the statute in Spokeo (and this case) required the defendant to follow certain procedures--in particular, to disclose certain things to consumers. The Court in Spokeo said that sometimes those procedural violations also come with a concrete harm, and sometimes they don't. A plaintiff has to plead and show that they do.)
The case arose when Abigail Strubel sued a credit-card issuer for failing to make four disclosures required by TILA: (1) that cardholders wishing to stop payment on an automatic payment plan had to satisfy certain obligations; (2) that the bank was statutorily obliged not only to acknowledge billing error claims within 30 days of receipt but also to advise of any corrections made during that time; (3) that certain identified rights pertained only to disputed credit card purchases for which full payment had not yet been made, and did not apply to cash advances or checks that accessed credit card accounts; and (4) that consumers dissatisfied with a credit card purchase had to contact the creditor in writing or electronically.
The court held that Strubel had standing to challenge 3 and 4, but not 1 and 2.
As a starting point, here's what the court said about Spokeo:
Thus, we understand Spokeo, and the cases cited therein, to instruct that an alleged procedural violation can by itself manifest concrete injury where Congress conferred the procedural right to protect a plaintiff's concrete interests and where the procedural violation presents a "risk of real harm" to that concrete interest. But even where Congress has accorded procedural rights to protect a concrete interest, a plaintiff may fail to demonstrate concrete injury where violation of the procedure at issue presents no material risk of harm to that underlying interest.
As to 3 and 4, the court said that Strubel sufficiently demonstrated a concrete interest in "avoid[ing] the uninformed use of credit," "a core object of TILA." It said that a "consumer not given notice of his obligations is likely not to satisfy them and, thereby, unwittingly to lose the very credit rights that the law affords to him." The court went on to dismiss these claims on the merits.
As to 1 and 2, the court said that Strubel didn't show a concrete interest, because (as to 1) the creditor had no automatic payment plan when Strubel had her card and (as to 2) Strubel never had any reason to report a billing error (which would have triggered the creditor's obligation to "advise of corrections." In other words, because the conditions for violating the underlying requirements were absent, the creditor's failure to notify Strubel of the requirements couldn't have caused any concrete harm. The court dismissed these claims for lack of standing.
The court noted that a different plaintiff could have standing to challenge 1 and 2, so long as the plaintiff could also show a concrete harm. The court also noted that the CFPB can enforce these provisions independently.
Tuesday, November 22, 2016
The House of Representatives last week filed a motion at the D.C. Circuit to delay the government's appeal of a district court ruling that the Obama Administration spent money on reimbursements to insurers under the Affordable Care Act without congressional authorization of funds. We posted on that ruling here.
The move seeks to halt the appeal and give President-Elect Trump and House Republicans time to figure out what to do next.
Recall that the district court ruled that the Obama Administration could not spend money on reimbursements for insurers on the ACA exchanges without an authorization from Congress. Because Congress hadn't authorized the expenditure, the Administration couldn't spend the money. (The ACA provision providing for insurer reimbursement is important, even critical, to the success of the exchanges--it's designed to keep insurance rates affordable. Congress zero-funded the line-item, though.)
If the appeals court affirms the district court ruling, and if (as expected) Congress declines to fund the line-item for insurer reimbursement, insurers would have to dramatically increase rates or drop out of the exchange markets. On the other hand, the D.C. Circuit could rule that the House lacks standing, or it could rule for the Administration on the merits.
A halt to the appeal would allow the incoming administration some time to decide how to deal with the suit, insurer reimbursements, and Obamacare in general.
The factual predicate for the case does not involve the most recent election. Writing for the majority, Seventh Circuit Judge Kenneth Ripple began by explaining:
The plaintiffs have brought this action alleging that Act 43, the redistricting plan enacted by the Wisconsin Legislature in 2011, constitutes an unconstitutional partisan gerrymander. Specifically, they maintain that the Republican-controlled legislature drafted and enacted a redistricting plan that systematically dilutes the voting strength of Democratic voters statewide. We find that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect.
In its discussion of "foundational case law," the court begins its discussion with the equal protection case of Reynolds v. Sims (1964), and concludes with League of United Latin American Citizens v. Perry (“LULAC”) (2006), although interestingly it does not cite Bush v. Gore (2000). In considering the "close relationship between equal protection and associational rights," the court found Williams v. Rhodes (1968) especially instructive. The court concluded:
We therefore believe that there is a solid basis for considering the associational aspect of voting in assessing the gravamen of the harm allegedly suffered by the plaintiffs. Indeed, in this case, the associational harm is especially important to the analysis because the testimony of the defendants’ witnesses as well as the plaintiffs’ demonstrate that, given the legislative practice and custom of Wisconsin, legislative action is controlled, as a practical matter, solely by the majority caucus. In such a circumstance, when the state places an artificial burden on the ability of voters of a certain political persuasion to form a legislative majority, it necessarily diminishes the weight of the vote of each of those voters when compared to the votes of individuals favoring another view. The burdened voter simply has a diminished or even no opportunity to effect a legislative majority. That voter is, in essence, an unequal participant in the decisions of the body politic.
It therefore rejected the notion that equal protection "must be limited to situations where the dilution is based on classifications such as race and population."
The court summarized the applicable doctrine as follows:
the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.
The court then exhaustively applied these standards to the complex facts, concluding that the plaintiffs had carried their burden. As to remedy, however, the court deferred because the parties had not had the opportunity to completely brief the matter and ordered simultaneous briefs within 30 days with 15 days thereafter to respond.
The dissenting judge, William Griesbach, relied on Davis v. Bandemer (1986) (plurality), in which the Court refused to invalidate Indiana's redistricting scheme, to support his conclusion that "partisan intent is not illegal, but is simply the consequence of assigning the task of redistricting to the political branches of government," and interestingly notes that
"It was only a term ago that the Court held by a 5 to 4 vote that it was constitutionally permissible to remove redistricting from the political branches. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (2015). Adoption of the majority’s standard may well compel States to do so."
The incessant issue of gerrymandering may be headed to the United States Supreme Court yet again.
[image 1, Wisconsin map 1865 via; image 2, Appendix 2 to the court's opinion]
Friday, November 18, 2016
The Ninth Circuit ruled in Missouri ex rel. Koster v. Harris that six states lacked standing to sue California over its laws protecting hens that lay eggs. The ruling dismisses the case in favor of California (and its egg laws), unless and until the plaintiffs amend their complaint.
The plaintiffs, six egg-producing states, sued California after that state enacted a law setting certain standards for egg-laying hens. (The law bans the sale of eggs in the state by hens that are kept in cages where they can't lay down, stand up, extend their limbs, and turn around.) The plaintiffs alleged parens patriae standing on behalf of egg farmers in their states.
The Ninth Circuit ruled against them. The court said that the states couldn't show "an interest apart from the interests of particular private parties," the first of two additional elements of parens patriae standing (over and above the normal elements of standing). (The second additional element, not at issue here, is "[t]he State must express a quasi-sovereign interest.") The court held that the states didn't allege that California's law harmed their entire population, and that those affected (the egg farmers) could bring their own suit against California. The court rejected the plaintiffs' claim that the California law would cause a fluctuation in the price of eggs and thereby harm all consumers. It also rejected the claim that the plaintiffs had standing because California's law was discriminatory. (It wasn't; it applies to all hens, wherever they live. The lack of discrimination in the law also goes to the merits (although not at issue yet): under the Dormant Commerce Clause, a nondiscriminatory law is upheld only if its burdens on interstate commerce outweigh its benefits--a relatively low standard.)
The court instructed the district court to dismiss the case without prejudice, however, allowing the states to amend their complaint.
Judge Rudolph Contreras (D.D.C.) ruled that a private citizen lacked standing to sue Senators McConnell and Grassley for failing to give President Obama's Supreme Court nominee, Judge Merrick Garland, a vote in the Senate.
Plaintiff Steven Michel brought the action under the Seventeenth Amendment, arguing that McConnell's and Grassley's stonewalling resulted in a loss of voice of his own home-state senators, and therefore a violation of his own right to vote for his home-state senators under the Seventeenth Amendment.
The court said that Michel lacked standing:
Mr. Michel has not shown that he has suffered an individualized injury such that he can maintain this action. This alleged diminution of his vote for United States Senators is the type of undifferentiated harm common to all citizens that is appropriate for redress in the political sphere: his claim is not that he has been unable to cast votes for Senators, but that his home-state Senators have been frustrated by the rules and leadership of the United States Senate. This is far from the type of direct, individualized harm that warrants judicial review of a "case or controversy."